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In re D.V.

California Court of Appeals, First District, Fourth Division
Mar 18, 2008
No. A117132 (Cal. Ct. App. Mar. 18, 2008)

Opinion


In re D.V., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.V., Defendant and Appellant. A117132 California Court of Appeal, First District, Fourth Division March 18, 2008

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. J05001293

Ruvolo, P. J.

M.V. (Mother) filed a petition pursuant to Welfare and Institutions Code section 388, alleging changed circumstances and seeking to modify the order setting a section 366.26 hearing. The juvenile court denied a hearing on the section 388 petition and thereafter terminated Mother’s parental rights at the section 366.26 hearing. Mother contends both rulings were erroneous. We affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

I. FACTS AND PROCEDUAL BACKGROUND

A. Initial Proceedings

On April 22, 2005, Mother admitted herself for psychiatric care and left D.V., then six years old, in the care of S.J., a lifelong friend of Mother, who was described as D.V.’s godmother. S.J. could not afford after-school child care for D.V., and she was concerned that Mother “would continue her pattern of retrieving the minor in periods of decompensation which, without Court authority, could not be prevented.” As a result, D.V. was taken into protective custody.

On April 27, 2005, S.J. obtained after-school child care for D.V. and with Mother’s consent, D.V. was released to S.J.’s care. S.J.’s home approval was completed on May 11, 2005. That same day, respondent Alameda County Social Services Agency (Agency) filed a petition under section 300, subdivision (b) seeking to have D.V. declared a dependent child. The petition alleged that Mother’s ability to provide regular care for D.V. was seriously impaired due to her history of mental illness. The petition also alleged that Mother was “currently hospitalized on a voluntary basis” and that she was “seeking further placement in a facility” to receive continued assistance and to stabilize her mental health. The petition further alleged that Mother had a history of unstable housing and that the identity of D.V.’s father was unknown.

The Agency subsequently made due diligence efforts to locate the alleged father, L.W. and undertook formal search efforts to locate him prior to the section 366.26 hearing.

On May 12, 2005, D.V. was ordered detained. In lieu of shelter care, the Agency was authorized to detain D.V. in the home of S.J. According to the combined jurisdiction/disposition report, S.J. indicated that she had provided “periodic care for [D.V.] for most of his life.” S.J. also stated that Mother “is bipolar, and leaves the minor with [her] when she is depressed and retrieves him when in a manic state.” S.J. further reported that D.V. had been diagnosed as being “slightly autistic.” She also stated that D.V. had been experiencing anxiety and had been wetting the bed following a car accident in which he was a passenger that had occurred several weeks prior to the dependency proceedings. S.J. enrolled D.V. in a therapy program, where he met with a therapist twice a month.

Mother confirmed the diagnosis, but the social worker was unable to find any documentation corroborating this finding.

Mother stated that she and D.V. had been involved in a traumatic car accident on or about March 21, 2005, when D.V.’s alleged father, L.W., intentionally crashed the car he was driving. L.W. was reported to have been “ ‘maniacally laughing out loud and speaking gibberish, saying[,] “If we’re going to die we’ll all be together.” ’ ” L.W. also told D.V., “ ‘I want you to hate me like I hate her.’ ”” D.V. suffered a four-inch cut to his face from the accident.

D.V. was described as “an adorable and very talkative child.” According to the jurisdiction/disposition report, D.V. said he has “ ‘two moms, [S.J.] and ‘M[].’ ” He was happy to be going home with S.J., but also said he loves his “ ‘other mother.’ ”

The combined jurisdiction/disposition report also stated that Mother had been released from her voluntary hospitalization, and had been temporarily staying with her mother until she could secure suitable housing. The report indicated that Mother’s stated goal was to “remain separated from the minor until such time that she can become and remain fully stable.” Mother’s medical records confirmed that she suffers from bipolar disorder. The jurisdiction/disposition report acknowledged that Mother “clearly loves [D.V.] and he is bonded to her.”

At the combined jurisdiction/disposition hearing held on May 26, 2005, Mother submitted on the reports. The court sustained the allegations in the amended petition and adjudged D.V. to be a dependent child. Mother was granted reunification services. Her case plan consisted of counseling/mental health services, psychotropic medication evaluation and monitoring, and “[t]herapeutic [d]ay [t]reatment [s]ervices.” The service objectives imposed by the Agency required Mother to “[o]btain and maintain a stable residence for yourself and your child,” and to “[c]omply with medical or psychological treatment.”

At the hearing, the Agency made an oral motion to add the allegation that D.V. had been left without any provision for support and that the identity and whereabouts of the alleged father were unknown.

B. Six-Month Review

In the six-month status review report, the Agency recommended that reunification services be terminated and that a section 366.26 hearing be set. The proposed permanent plan was legal guardianship with S.J. According to the report, Mother approved of the plan, and intended to terminate her reunification services voluntarily so that legal guardianship with S.J. could proceed. Mother stated that she did not feel she could provide adequate care for D.V. and believed that the best place for D.V. was with S.J.

According to the six-month status review report, S.J and D.V. had moved to Long Beach in August 2005. As of November 2005, S.J. did not have a permanent residence, and had been staying with a friend. Mother had not visited with D.V. since he relocated to Long Beach. The report indicated that Mother had been visiting D.V. on an inconsistent basis prior to the move, often calling and cancelling immediately before the visit was to occur. Mother missed two scheduled visits in July 2005. She last visited with D.V. on July 19, 2005.

At the six-month review hearing held on November 23, 2005, Mother submitted on the report. The court determined that Mother had made no progress in alleviating or mitigating the issues that necessitated D.V.’s placement. The court terminated reunification services and set a section 366.26 hearing for March 23, 2006.

In March 2006, in preparation for the section 366.26 hearing, the Agency provided the court with a report dated March 23, 2006, regarding the proposed permanent plan of legal guardianship with S.J. The report indicated that D.V. was “very bonded” with S.J., and he viewed her as his “primary caretaker.” “[S.J.] appear[ed] comfortable in her role as [D.V.’s] caretaker, as she ha[d] taken care of [D.V.] much of his life.” Due to the consistency of care that S.J. had provided for D.V., the Agency determined that it was most appropriate that S.J. become the legal guardian. S.J. intended to allow D.V. to visit with Mother; the Agency opined that S.J. seemed fully capable of establishing a visitation schedule that was in D.V.’s best interest. Mother appeared to be in agreement with the proposed permanent plan.

According to the six-month status review report, D.V. had been diagnosed with attention deficit disorder on July 27, 2005, by his then-treating therapist. Following a psychological evaluation conducted on October 27, 2005, D.V. was diagnosed with reactive attachment disorder. As part of his therapy, D.V.’s foster youth counselor employed play and cognitive behavioral therapy. The counselor found D.V. distractible, but noted no behavioral issues. The counselor reported that D.V. spoke about Mother in a positive manner. D.V. was reported to be thriving at school. S.J. stated that D.V. was well liked at school and played basketball with his friends; D.V’s teacher described him as a great student with a good attitude toward learning.

Despite the Agency’s determination that legal guardianship with S.J. was the appropriate permanent plan for D.V., the report recommended that the section 366.26 hearing be continued 90 days. As of March 2006, S.J. did not have a permanent address in Long Beach. Thus, the Agency was unable to complete a non-relative extended family member assessment. The juvenile court continued the section 366.26 hearing to June 20, 2006.

Meanwhile, on March 27, 2006, S.J. voluntarily left D.V. at the Los Angeles County Children and Family Services Department. Mother then filed a section 388 petition on March 30, 2006, alleging that D.V.’s best interest would be served by reuniting him with Mother. Mother alleged that D.V.’s family could provide the love and support D.V. needed for his reactive attachment disorder.

This petition was subsequently withdrawn.

C. Section 387 Petition and Twelve-Month Review

On April 3, 2006, the Agency filed a section 387 petition, seeking a more restrictive placement for D.V. The petition alleged that S.J. had continuing problems with foster care funding and MediCal. S.J. had not received any money for D.V.’s care because her non-relative assessment had not been completed. As a result, S.J. could no longer continue to care for D.V. D.V. was placed in foster care and later transported back to Alameda County.

On April 4, 2006, the court ordered D.V. detained, but granted the Agency discretion to release him to a suitable adult relative, including fictive kin. The Agency was further authorized to arrange supervised visits with Mother. On April 12, 2006, D.V. had a visit with Mother, his maternal grandmother, two maternal aunts, and a toddler cousin. D.V. appeared happy to see his family, though he seemed to hold back slightly in having physical contact with them. At Mother’s request, D.V. gave her a hug. D.V. left the visit without any tears. After the visit, D.V. stated that he had seen “ ‘M[].’ ” He further clarified that he called S.J. “ ‘Mama.’ ” When asked where he wanted to live, he said “ ‘Long Beach.’ ”

In the combined jurisdiction/disposition report, the Agency recommended that the section 387 petition be dismissed and that D.V. return to S.J.’s home. On April 18, 2006, the court dismissed the petition without prejudice. Before he returned to Long Beach, Mother visited D.V. on April 19, 2006. Mother brought new clothes for D.V. and acted appropriately during the visit. Although Mother cried at the end of the visit, D.V. left without any tears. He said he would miss Mother, but he wanted to go back to Long Beach.

After D.V. returned to Long Beach, Mother continued to maintain that she wanted D.V. returned to her care. A maternal aunt, J.V., also reported that she was interested in having D.V. being with her.

According to the twelve-month review report, S.J. viewed D.V. “like her own son,” but she was no longer interested in pursuing legal guardianship. In an addendum report, the Agency recommenced that D.V.’s permanent plan be a “permanently planned living arrangement” with S.J.

At the April 28, 2006 twelve-month review hearing, the court approved a permanent plan of “placement with a foster home” along with a “specific goal of legal guardianship.” The court vacated the section 366.26 hearing set for June 20, 2006, and scheduled a review hearing for October 17, 2006.

D. Additional Review

In October 2006, the Agency recommended that a section 366.26 hearing be set and that a permanent plan of adoption be implemented for D.V. According to the status review report, S.J. indicated that she wanted to pursue a more permanent plan for D.V., and she was committed to his overall well being. Mother continued to express her desire to have D.V. returned to her care. The Agency reported that Mother had recently married and moved to Vallejo, where she lived with her husband and her seven-year-old stepson in a five bedroom home. Mother was employed at Starbucks and at Carl’s Jr. Mother reported that she was participating in her case plan and working hard to meet her objectives. Mother further reported that she was under the care of a psychiatrist, and was no longer taking psychotropic medication at his recommendation. The Agency, however, had not received any documentation that Mother had fulfilled all of the aspects of her case plan, which included “counseling, psychotropic medication, on-going psychiatric evaluation and monitoring, and therapeutic day treatment services.”

Mother had not visited D.V. during the reporting period, but she made weekly telephone calls to him. Mother stated that she knew D.V. wanted to return to her care because he often brought up good memories and talked about seeing her in his dreams. According to the status review report, D.V.’s therapist had expressed concerns regarding D.V. having contact with Mother because afterward D.V. exhibited extreme anxiety, wet his bed, engaged in physical altercations at school, and expressed his distress in therapy. In a letter attached to the report, D.V.’s therapist opined that contact with Mother was not beneficial to him, and recommended no further contact until such time that D.V. requests it and Mother is in appropriate mental health. D.V.’s therapist explained that D.V. felt comfortable speaking with Mother on the telephone only if S.J. was in the room and he was able to make eye contact with her.

On October 17, 2006, Mother appeared with counsel and opposed the setting of a section 366.26 hearing. Mother’s husband and mother-in-law also attended the hearing. Mother’s counsel argued that Mother had completed her reunification plan, was married and working full time, and also caring for her stepson. She also submitted a letter from her doctor, Christopher Sue, M.D., dated June 27, 2006, which indicated that Mother had made “good progress” in her therapy and had discontinued her medications herself. Dr. Sue stated that it was not necessary to restart the medications; he would continue to monitor Mother’s progress on a monthly basis. Mother’s counsel reported that Mother had experienced “no mental health issues for quite some time.”

D.V.’s counsel reported that he spoke with D.V., and D.V. “is where he wants to be.” Counsel further reported that D.V. referred to S.J. as his mother, and he became upset when counsel referred to Mother’s last name as D.V.’s surname; D.V. wanted to have S.J.’s last name. Counsel also stated that D.V. made it very clear that he did not want visitation with Mother and that Mother’s telephone calls were upsetting to him.

The juvenile court found adoption to be the appropriate permanent plan and set a section 366.26 hearing for February 14, 2007. In a separate hearing on November 1, 2006, the court ordered supervised, monthly visitation for Mother and D.V.

E. Mother’s Section 388 Petition

On February 5, 2007, Mother filed a section 388 petition requesting the court to vacate the order setting the section 366.26 hearing and to return D.V. to her care. The petition was nearly identical to Mother’s prior petition, which was subsequently withdrawn. In it, Mother alleged that D.V. “has a large extended family and a mother ready, willing, and able to parent him. Reunification of [D.V.] with his mother is preferable to plac[e]ment with an unstable caretaker.” In support of the petition, Mother attached a declaration in which she stated that she had successfully addressed the issues that brought D.V. before the court, that she sees a psychiatrist on a regular basis and has been released from psychotropic medication by her doctor, that she is married and parenting a stepson, has stable housing, is working two jobs, and effectively has completed her case plan. Mother also attached the same June 27, 2006 letter from Dr. Sue that had been filed with the court on October 17, 2006.

D.V.’s counsel and the Agency opposed the petition and requested a summary denial on the grounds that the petition contained unsubstantiated allegations of changed circumstances and failed to demonstrate that a change of orders would promote D.V.’s best interests.

F. Section 366.26 Report and Hearing

In the section 366.26 report, the Agency advised the court that Mother had been inconsistent about calling D.V. for scheduled weekly telephone contact. Mother did not call D.V. during the three weeks before the October 17, 2006 hearing. The telephone calls were then reduced to every other week. Mother called D.V. once in November 2006, once in December 2006 (and also left a message on Christmas), and twice in January 2007. Mother stated that she had been calling D.V. regularly, but S.J. would hang up the phone or tell D.V. that he did not have to speak with her. The Agency reiterated the concerns of D.V.’s therapist regarding D.V.’s contact with Mother, which had resulted in instances of bed wetting, defiance, and disruptive behavior at school. According to the report, S.J. indicated that Mother had told D.V. that he would be returning to live with her, and had brought up the subject of the traumatic car accident, which was upsetting for D.V. The Agency also submitted a January 17, 2007 letter from D.V.’s therapist, which recommended that any future contact with Mother be at D.V.’s discretion. The therapist stated that she had observed D.V. and S.J. together on many occasions and could attest that “there is a tremendous bond of love and respect between them.” The therapist further opined, “[D.V.] has relied on [S.J.] for reassurance, safety and stability. He has been on an ‘emotional roller coaster’ of sadness, disappointment, anger, guilt, fear, anxiety, etc., with his biological mother, manifesting in defiance, aggressiveness, and other negative behaviors.” The therapist further indicated that these behavioral issues have been “especially apparent” after recent phone calls from Mother.

D.V. was described as being in good health, with no outstanding medical concerns other than asthma. His physical development appeared to be on target. He was in second grade and was doing satisfactory work in every subject except penmanship. D.V. was described as potentially having a “verbal processing problem, as he will sometimes use or exchange words inappropriately.” Previously, D.V. also had been diagnosed with reactive attachment disorder. The Agency acknowledged that there had been some issues with defiant behavior at school, but there had been notable progress in this area.

The Agency was unable to get a direct statement by telephone from D.V. regarding the proposed adoption. However, the Agency reported that when D.V. was in Alameda County on April 19, 2006, he told a social worker that he would miss Mother, but wanted to go back to his godmother, whom he called “ “Mom.’ ”

On February 14, 2007, the juvenile court considered Mother’s section 388 petition at the start of the section 366.26 hearing. The court denied the petition without an evidentiary hearing, finding that it did not state new evidence or a change of circumstances. The court also determined that the petition did not show how the proposed change would be in D.V.’s best interest. In so ruling, the court explained: “[T]he declaration and the supporting documents were conclusory in nature. And, also, there was a letter from a therapist and it was an old letter. [¶] And in terms of the second prong, . . . the statements in the 388 were conclusory as well . . . . It’s basically, I’m his mother. I want to parent him and I’m able to parent him.”

The juvenile court then proceeded with the section 366.26 hearing. Mother’s counsel argued that there was no statement from D.V. regarding his feelings about adoption. In rebuttal, the Agency maintained that the case did not turn on whether a seven-year-old boy understood the concepts of adoption and termination of parental rights, but whether the proposed permanent plan was in the child’s best interest as determined by the court. The juvenile court took judicial notice of prior findings, orders, and judgments and determined that there was clear and convincing evidence that D.V. would be adopted. The court further stated that it had “considered the wishes of the child consistent with the child’s age.” The court determined that no applicable exceptions applied and terminated Mother’s parental rights. Adoption was selected as the permanent plan. S.J. was determined to be the prospective adoptive parent.

The instant appeal followed.

II. DISCUSSION

A. Denial of Section 388 Petition

“During the reunification period, there is a presumption that the child will be returned to parental custody. Prior to terminating reunification services, the court must make a determination that it would be detrimental to the child to be returned to the parent’s custody. Once reunification services are terminated, the focus shifts to the needs of the child for permanency and stability, and the court need not continue to consider reunification at the section 366.26 hearing. In order to revive the reunification issue, the parent must prove changed circumstances pursuant to section 388. [Citation.]” (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1800.)

“The parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 [].) If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [].) We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

1. Prima Facie Showing

Here, Mother failed to make the showing necessary to obtain a hearing. The petition may not be conclusory. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) “ ‘[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence’ is required. (In re Edward H. (1996) 43 Cal.App.4th 584, 593 [].) Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence.” (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)

Unlike In re Hashem H., supra, 45 Cal.App.4th 1791, upon which Mother relies, where the petitioning parent described her continuous participation in therapy and attached a letter from her therapist describing the mother’s progress in therapy and her ability to care for the child (id. at p. 1796), here Mother presented no specific information regarding her present ability to care for D.V. Rather, she merely asserted that D.V. has a “large extended family and a mother ready, willing and able to parent him.” She further alleged that D.V.’s reunification with her was “preferable to plac[e]ment with an unstable caretaker.” In support of her petition, Mother attached a declaration in which she stated that she had successfully completed her case plan, regularly saw a psychiatrist and had been released from psychotropic medication, was married and parenting a stepson, and working two jobs. Mother also attached a letter from her doctor, dated June 27, 2006, which stated that since April 2006, Mother had made good progress emotionally and had been off all medications after she discontinued the medications herself. Although the letter indicated that Mother had been recently making good progress in her treatment, there was no mention of Mother’s ability to care for D.V. Moreover, the letter was nearly eight months old at the time of the section 366.26 hearing. No other documentation (i.e., current letter from doctor, declarations from spouse and employer) was attached to the petition.

Even assuming arguendo that Mother’s conclusory allegations support a prima facie showing of changed circumstances, Mother’s petition does not demonstrate how a change in the order would be in D.V.’s best interest. At this point in the proceedings, on the eve of the selection and implementation hearing, D.V.’s interest in stability was the court’s foremost concern, outweighing any interest Mother may have in reunification. (In re Anthony W., supra, 87 Cal.App.4th at pp. 251-252.) Mother made no showing how it would be in D.V’s best interest to remove D.V. from his placement with S.J., who had been a consistent and stable caregiver “much of his life,” to live with Mother. Moreover, Mother had not seen D.V. since April 19, 2006, and she failed to have consistent and positive telephonic visits with him. When Mother did call D.V., he subsequently experienced anxiety, wet his bed, and engaged in defiant behavior at school. Additionally, during the phone conversations with Mother, D.V. needed to be in the same room with S.J. and to maintain eye contact with her.

In light of the foregoing, we conclude that both of the reasons provided by the juvenile court are sound. Accordingly, the court did not err by denying the petition without the benefit of a full evidentiary hearing.

2. Ineffective Assistance of Counsel

Mother insists that her counsel was ineffective in failing to provide the court with an updated letter from her doctor and other documentation in support of her section 388 petition. We disagree.

“All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel.” (§ 317.5, subd. (a).) The test for showing ineffective assistance of counsel in dependency proceedings is the same test used in criminal proceedings. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668; see also In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) An appellant claiming ineffective assistance of counsel must show “(1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. [Citations.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147; see also Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Ledesma (1987) 43 Cal.3d 171, 216.) There is a strong presumption that counsel’s conduct falls within the wide range of adequate professional assistance. (People v. Stanley (2006) 39 Cal.4th 913, 954.) A reviewing court may reverse on the ground of inadequate assistance on direct appeal only if the record affirmatively discloses no rational purpose for counsel’s act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437; see also People v. Osband (1996) 13 Cal.4th 622, 700-701.)

To establish prejudice, the defendant must show that there is a reasonable probability, sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different but for counsel’s unprofessional errors. (People v. Montoya, supra, 149 Cal.App.4th at p. 1147; see also In re Kristin H., supra, 46 Cal.App.4th at p. 1668.) The appellant must prove prejudice as a demonstrable reality, not merely by speculation as to the effect of counsel’s errors or omissions. (People v. Williams (1988) 44 Cal.3d 883, 937.) A court “ ‘need not determine whether counsel’s performance was deficient before examining the prejudice suffered by [the appellant] as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . ., that course should be followed.’ [Citation.]” (In re Elizabeth G. (2001) 88 Cal.App.4th 496, 503; see also In re Nada R., supra, 89 Cal.App.4th at p. 1180.)

Taking the latter approach, we find that the record shows no reasonable probability that Mother would have had a better outcome had her attorney acted differently, or had presented an updated letter from her doctor or other documentation at the permanency hearing, because there was no substantial likelihood that the dependency court would have granted Mother’s section 388 petition. As discussed, a parent who petitions to modify an existing dependency court order under section 388 must show, by a preponderance of the evidence, both changed circumstances and that the modification would be in the child’s best interest. (§ 388; In re Anthony W., supra, 87 Cal.App.4th at p. 250.)

As to Mother’s section 388 petition, given the evidence that Mother had not maintained regular contact with D.V., and that after any such contact, D.V. exhibited anxiety, wet the bed, and engaged in defiant behavior at school, together with the evidence that D.V.’s therapist recommended against further contact with Mother and that D.V. relied on S.J. for stability and support, Mother had little probability of convincing the court that returning D.V. to her care would be in his best interest.

Thus, Mother has not demonstrated prejudicial ineffectiveness of counsel from the fact that no additional documentation was filed in support of the section 388 petition. (See In re Kristin H., supra, 46 Cal.App.4th at p. 1668.) Accordingly, reversal is not required.

B. Adoptability

Mother raises several arguments regarding the court’s adoptability finding. First, Mother contends that the juvenile court failed to receive or consider evidence regarding D.V.’s wishes regarding adoption. Second, Mother contends the court lacked clear and convincing evidence of D.V.’s adoptability due to his special needs. Last, Mother argues that the juvenile court failed to adequately consider any legal impediments to adoption.

1. Child’s Wishes

Mother contends that the juvenile court committed reversible error in not ascertaining D.V.’s wishes with respect to the termination of Mother’s parental rights.

At a section 366.26 hearing, the juvenile court must consider the dependent child’s wishes to the extent ascertainable and act in his or her best interest. (§ 366.26, subd. (h)(1); In re Juan H. (1992) 11 Cal.App.4th 169, 173.) Section 317, subdivision (e) specifies the duties of an attorney representing a child in a dependency proceeding. Among those duties is that “[i]n any case in which the child is four years of age or older, counsel shall interview the child to determine the child’s wishes and to assess the child’s well-being, and shall advise the court of the child’s wishes.” (§ 317, subd. (e).)

Evidence about a child’s wishes need not be overt or explicit; reviewing courts allow juvenile courts to draw reasonable inferences from other evidentiary sources. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) Courts have also moved away from the earlier position of In re Diana G. (1992) 10 Cal.App.4th 1468, 1480), that the dependent must be aware “that the proceeding involves the termination of parental rights.” (See In re Julian L. (1998) 67 Cal.App.4th 204, 208-209; In re Leo M. (1993) 19 Cal.App.4th 1583, 1593.)

It is clear from the remarks made to and by the juvenile court that Mother cannot claim the court was unaware of its duty to attempt to divine D.V.’s wishes. Moreover, we must assume in the absence of record evidence to the contrary that D.V.’s counsel complied with the code’s mandate and consulted, to the extent feasible, with D.V., before urging the juvenile court to terminate Mother’s parental rights. (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 752 [counsel not required to make record of interview with child].) Counsel adequately conveyed D.V.’s wishes by joining in the Agency’s recommendation that Mother’s parental rights be terminated and that D.V. be adopted by S.J.

Although the Agency’s most recent assessment did not have an express statement of D.V.’s wishes, it did advise the court Mother had not maintained consistent contact with D.V. Indeed, following the sporadic contact with Mother, D.V. exhibited anxiety, bed wetting, and defiant behavior at school. D.V.’s therapist strongly recommended adoption by S.J. The Agency further reported that in April 2006, D.V. stated that although he would miss Mother, he wanted to go back to S.J. D.V. also referred to S.J. as his “ ‘mom.’ ”

Finally, while the law requires the juvenile court to consider a child’s wishes to the extent ascertainable, it does not command the court to abide by those wishes unless the child is 12 years of age or older and objects to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(ii).) Thus, there is no merit to Mother’s assumption that her seven-year-old son’s wishes should be outcome determinative as to the likelihood of his adoption. In any event, the record provided means for ascertaining D.V.’s opinion. (In re Amanda D., supra, 55 Cal.App.4th at p. 820.) The absence of an express statement of D.V.’s wishes in the Agency’s assessment (§§ 366.21, subd. (i)(1)(E), 366.22, subd. (b)(1)(E)) may therefore be treated as nonprejudicial. (See In re Cody S. (1997) 56 Cal.App.4th 230, 232-234; In re John F. (1994) 27 Cal.App.4th 1365, 1378.)

2. Child’s Special Needs

A juvenile court may terminate parental rights only if it determines by clear and convincing evidence that the child will likely be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) “ ‘ “ ‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]” ’ [Citations.]” (Id. at pp. 1205-1206.) We will uphold the juvenile court’s adoptability finding if the record contains substantial evidence from which a reasonable trier of fact could find, by clear and convincing evidence, that the child was likely to be adopted within a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

“The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’ [Citations.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Nevertheless, “the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (Id. at pp. 1649-1650.)

Mother argues there is insufficient evidence to support the court’s adoptability finding. She emphasizes D.V.’s behavioral problems and diagnosis of reactive attachment disorder. Notwithstanding D.V.’s continuing behavioral and psychological issues, he was showing signs of improvement during the months preceding the section 366.26 hearing, during which time he was living with S.J. Indeed, D.V.’s therapist opined that the source of D.V.’s behavioral problems was his contact with Mother. It is worth noting that the juvenile court found persuasive the statements by D.V.’s therapist that D.V. looked to S.J. for “reassurance, safety, and stability,” and that he had “been on an emotional roller coaster of sadness, disappointment, anger fear, guilt, [and] anxiety with his biological mother, manifesting in defiance, aggressiveness, and other negative behaviors.”

“ ‘Reactive attachment disorder’ is a psychological condition that means an inability to form loving attachments. It entails difficulty bonding, poor impulse control, and insensitivity to the needs of others. [Citations.]” (In re Jayson T. (2002) 97 Cal.App.4th 75, 82, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) This disorder is “ ‘exacerbated by the lack of permanent placement in a stable, nurturing and supportive home.’ ” (In re Krystle D. (1994) 30 Cal.App.4th 1778, 1792.) Despite being diagnosed with reactive attachment disorder, D.V. had formed a strong attachment to S.J. and identified S.J. as his “ ‘mom.’ ” More importantly, the evidence that S.J. was committed to adopting D.V. tends to show even his diagnosis of reactive attachment disorder is not likely to dissuade other individuals from adopting him. Such evidence indicates generally that D.V. “is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650; see also In re J.I. (2003) 108 Cal.App.4th 903, 911.)

We conclude the foregoing evidence, viewed in the light most favorable to the court’s order, provides substantial evidence by which a reasonable trier of fact could find D.V. likely to be adopted under the clear and convincing evidence standard. The key factors were D.V.’s relatively young age (nearly eight years old), his attachment to S.J., his improving behavior, and S.J.’s willingness to adopt him.

Mother’s reliance on several cases is misplaced. In In re Jayson T., supra, 97 Cal.App.4th 75, the court reversed adoptability findings for two siblings based on post judgment evidence that their prospective adoptive parents returned them to a children’s home after the section 366.26 hearing and after the parents discovered that one of the children was “ ‘possibly affected’ with reactive attachment disorder.” (In re Jayson T., supra, at pp. 82, 90-91.) The court said that the failure of the placement, in combination with the possible diagnosis of reactive attachment disorder, “throws the adoptability finding into serious doubt.” (Id. at p. 91.) Here, however, the juvenile court knew of and duly considered D.V.’s diagnosis of reactive attachment disorder when it made its adoptability finding.

In In re Zeth S., supra, 31 Cal.4th 396, our Supreme Court expressly disapproved of the utilization of post judgment evidence on appeal. (Id. at pp. 405-406, 413-414.) In the instant case, we granted the Agency’s motion to strike such evidence from the record and to strike all references and arguments based on this evidence in the appellate briefs.

In re Amelia S. (1991) 229 Cal.App.3d 1060, 1062-1063, involved a sibling group of 10, each of whom had social delays. The permanency hearing report indicated a few foster families were considering adoption of some of the children, which the appellate court found was a far cry from the clear and convincing evidence required to establish the likelihood of adoption. (Id. at pp. 1064-1065.)

In re Jerome D., supra, 84 Cal.App.4th 1200, the adoptability finding stated that the child’s stepfather was willing to adopt. (Id. at p. 1205.) A home study had not yet been initiated and the assessment did not address the stepfather’s criminal and child protective services history. (Ibid.) Nor did the assessment consider either the child’s close relationship with his mother or his prosthetic eye, which required care and treatment. (Ibid.) In light of these deficiencies, the appellate court found that the evidence of adoptability did not meet the high standard of clear and convincing evidence. (Id. at pp. 1205-1206.)

In the present case, the evidence shows that D.V. was bonded with S.J., and that she had cared for him during “much of his life.” S.J. was also committed to adopting D.V. The major uncertainties regarding the potential adoptive parents in both Amelia S. and Jerome D. are not present in this case. The close relationship of the child to his mother, which strongly affected the court’s analysis in Jerome D., is not an issue here.

Accordingly, we find the cases cited by Mother unpersuasive. We conclude that the record contains substantial evidence in support of the juvenile court’s finding that it is likely D.V. will be adopted. (See § 366.26, subd. (c)(1); In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)

3. Legal Impediments to Adoption

Mother contends the juvenile court failed to “scrupulously” ascertain whether any legal impediments to adoption existed. In support of this contention, Mother argues that S.J.’s propensity to abandon D.V. during times of financial difficulty and the lack of an approved adoptive home study cast doubt on whether D.V. was matched with an appropriate adoptive parent.

In re Carl R. (2005) 128 Cal.App.4th 1051, upon which Mother relies, is distinguishable. There, the child was eight years old, had lived in a convalescent hospital since he was four months old, and had disabilities that required lifelong intensive care. (Id. at p. 1058.) The adoptability finding was based solely on one family’s willingness to adopt the child. In view of the child’s lifelong special needs, the court held that the juvenile court had to determine whether the prospective adoptive family could meet the child’s special needs. (Id. at p. 1061.) Based on the evidence in the record, the court found sufficient evidence that the prospective adoptive family could meet the child’s needs and that the plan to home school him did not constitute a legal impediment to adoption. (Id. at pp. 1058, 1060-1065.) Here, in contrast, the juvenile court found that D.V. was generally adoptable, that is, his adoptability was not based solely on S.J.’s willingness to adopt him but also on his age, improving behavior, and ability to bond with his caretaker. Thus here, there was no need to assess S.J.’s ability to meet D.V.’s needs.

Finally, “there is no requirement that an adoptive home study be completed before a court can terminate parental rights. The question before the juvenile court was whether the child was likely to be adopted within a reasonable time, not whether any particular adoptive parents were suitable. [Citation.] ‘[T]he question of a family’s suitability to adopt is an issue which is reserved for the subsequent adoption proceeding.’ [Citation.]” (In re Marina S. (2005) 132 Cal.App.4th 158, 166.) To the extent Mother argues that the juvenile court’s ruling placed D.V. at risk of being a legal orphan, such fears are not supported by the record. Even assuming arguendo that D.V is not adopted by S.J., his age, improving behavior, and ability to bond with his caretaker created a likelihood that he would be adopted by some other family within a reasonable time. As a final note, existing law provides a safety mechanism against creating legal orphans by allowing children, who have not been adopted within three years after the termination of parental rights, to petition the juvenile court for reinstatement of parental rights pursuant to section 388. (§ 366.26, subd. (i)(2).) Thus, in the unlikely event that D.V. is not adopted by S.J. or another adoptive family, he could petition the juvenile court for reinstatement of Mother’s parental rights.

III. DISPOSITION

The order denying Mother’s section 388 petition is affirmed. The order terminating Mother’s parental rights and selecting adoption as D.V.’s permanent plan is affirmed.

We concur: Sepulveda, J., Rivera, J.


Summaries of

In re D.V.

California Court of Appeals, First District, Fourth Division
Mar 18, 2008
No. A117132 (Cal. Ct. App. Mar. 18, 2008)
Case details for

In re D.V.

Case Details

Full title:ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.V.…

Court:California Court of Appeals, First District, Fourth Division

Date published: Mar 18, 2008

Citations

No. A117132 (Cal. Ct. App. Mar. 18, 2008)